Deconstructing the ban on Shakib Al Hasan

One of the best all-rounders of our times, former Bangladeshi Captain Shakib Al Hasan has been banned for 2 years with 1 year of suspended sentence by ICC for breaching its Anti-Corruption Code. He could resume his cricketing career on October 29, 2020.

The question of jurisdiction:

The question of jurisdiction pertains to 2 aspects: Mr Al Hasan being subject to the ICC code and ICC having the jurisdiction to probe all the violations(both domestic and international).

Firstly, by virtue of Mr Al Hasan's selection in international matches for Bangladesh Cricket Board, he constituted a Participant for the purposes of the code. Thus he was automatically bound by the Code and under the jurisdiction of ICC. 

Secondly, in the present case, since the violations pertained to both international and domestic matches, a question arose as to whether any one body (BCCI or ICC) will take the required action for all violations or whether each body would take action for violations committed in their sphere. The relevant provision in this context is Code Article 1.7.3.3.

Code Article 1.7.3.3 states as follows: 

1.7.3.3 if the alleged Corrupt Conduct relates to one or more International Matches and one or more Domestic Matches, the ICC and the relevant National Cricket Federation(s) shall agree between them which of them shall take action (and, where applicable, in which order) against any relevant Participant for such Corrupt Conduct and,.....;  

As stated above, in this case, the violations pertained to both international (the January 2018 tri-series between Bangladesh, Zimbabwe and Sri Lanka) and domestic(IPL League 2018) matches and therefore, as per agreement between BCCI and ICC, ICC took action in respect of all admissions made by Mr. Al Hasan.

The question of violations:

The detailed decision which can be accessed here, enumerates the corrupted approaches which the cricketer failed to report:

1. 19 January 2018- "Do we work in this or I wait till the IPL?"  Whatsapp message sent by one Mr. Deepak Aggarwal :- the work here refers to Mr. Aggarwal(a suspect bookie) wanting inside information

2. 23 January 2018 "Bro anything in this series?"Another message and confirmed by Mr Al Hasan as being message seeking insider information

3. 26 April 2018- IPL Match- Kings XI v Sunrisers- Another message by the same person seeking (personal) information of whether a particular player was playing in that match

During all the above 3 interactions, Mr Al Hasan confirmed that he didn't act on any of the approaches nor did he provide any information or receive any monetary reward. 

However, failure to report these incidents caused violation of the following provisions of the Anti Corruption Code of the ICC:

Code Article 2.4.4

failing to disclose to the ACU (without unnecessary delay) full details or any approaches or invitations received by the Participant to engage in Corrupt Conduct under the AntiCorruption Code. 

The explanatory note further explains that unnecessary delay would be constituted if the player reports the approach after the match in respect of which he/she was invited to engage in corrupt conduct. 

The definition of corrupt conduct needs to be determined from the Appendix 1- Definitions, 

Corrupt Conduct. Any act or omission that would amount to an offence under Article 2 of this Anti-Corruption Code or the equivalent provisions of the anti-corruption rules of any National Cricket Federation 

In this case, the corrupt conduct could be traced to Code Article 2.3. 

Code Article 2.3 

2.3.1 Using any Inside Information for Betting purposes in relation to any International Match. 

2.3.2 Disclosing Inside Information to any person where the Participant knew or should have known that such disclosure might lead to the information being used in relation to Betting in relation to any International Match.  

2.3.3 Directly or indirectly soliciting, inducing, enticing, persuading, encouraging or intentionally facilitating any Participant to breach any of the foregoing provisions of this Article 2.3. 

Thus violation of Code Article 2.4.4 took place on 3 occasions. Having now seen how the acts amounted to violations, let us now move towards the quantum of punishment or sanction. 

The question of punishments: 

As Mr Al Hasan admitted to the breaches, Code Article 5.1.12 applied. 

Code Article 5.1.12 provides for the possibility to the participant to admit the breach, whether or not in exchange for an agreement with the ICC on the appropriate sanction to be imposed upon him/her in order to avoid the need for a hearing before the Anti-Corruption Tribunal. The resulting agreement is called Agreed Sanction. 

The provision also states that the agreed sanction will give due regard to range of sanctions under Code Article 6.2. Under this provision, the breach of Code Article 2.4.4 entails a punishment between the range of 6 months-5 years.  Moreover, Code Article 6.1 requires an imposition of appropriate sanction taking into account relevant aggravating and mitigating factors. 

The decision enlisted the following aggravating circumstances: 

1. Failure to report not 1 but 3 approaches

2. Not isolated incidents but made over a period of several months

3. Approaches were clear in content and intent to obtain inside information

4. Mr Al Hasan was the captain of the Bangladeshi team- therefore holds a position of responsibility 

The decision enlisted the following mitigating circumstances:

1. Voluntary admission and cooperation

2. Remorse and contrition 

3. Previous good disciplinary record 

4. The offence didn't affect the outcome of the match. Nor did it substantially damage the commercial value or public interest in the relevant matches 

Thus, considering all the aggravating and mitigating circumstances, the ICC imposed a sanction period of ineligibility of 2 years of which 12 months was suspended on Mr Al Hasan's compliance with certain conditions of not committing any further offence and participating in anti-corruption education. 

Comparing with Precedents 

The prominent cases include the case of Mr. Siddharth Trivedi in IPL spot fixing case of 2013. In the case of Mr. Trivedi, the BCCI committee charged him only with failure to report the approach made and a suspension of 1 year was placed on him. 

Another case is that of Sri Lankan batsman Kaushal Lokuarachchi who didn't report a corrupted approach during a match of Bangladesh Premier League. The BPL Anti Corruption Tribunal handed an 18 month ban to him for the same. The cricketer appealed the decision consequent to which the ban was reduced to 1 year. According to media reports, the major grounds for appeal by the cricketer was that he was not approached by bookie but rather by a team official. 

In the same scandal, former New Zealand cricketer Lou Vincent was also banned for 3 years for not reporting the approach of a bookie. The cricketer was subsequently handed a life ban after he admitted to fixing charges.

The 3rd prominent case is that of Hong Kong cricketer Irfan Ahmed (who was also subsequently banned for life for spot fixing). He was earlier suspended for 2 years and 6 months in 2014 on the violation of Code Article 2.4.2. 

While analyzing the above cases, the difference with the present case is twofold. Firstly, in the present case of Mr. Al Hasan, the alleged bookie had been approaching Mr Al Hasan over a period of certain months, thus highlighting that it was not an isolated act of failure on Mr Al Hasan's part. 

Additionally, by virtue of being the captain of Bangladesh National Cricket Team and having represented Bangladesh in more than 300 international matches, Mr Al Hasan had the required knowledge and experience to know that he was under greater obligation and duty bound to report these approaches. 

Taking into consideration the above two factors, some commentators have even questioned the duration of 2 years as less and not being adequate to set an example. 

The Way Ahead 

This case has thrown light on the ease with which bookies are able to approach not just fringe players but star players as well. There is thus now a need to increase awareness among all players and increase the efficiency and coordination of law enforcement agencies. Further, time is ripe to consider the legalizing of gambling in India which could help put a stop to illegal syndicate activities thriving on the illegal betting and gambling activities.